Case Background

The parties have two children, aged 12 and 14. Sole custody and primary parenting rights were granted to the mother pursuant to a court order in July 2011. In May 2017, the father obtained a court order granting him access on alternate weekends, with expanded access if a P.A. Day falls on the father’s weekend.

The parties have historically engaged in a high level of conflict throughout their separation. Nevertheless, they agreed to a court order which stipulated that each parent shall be respectful to the other and shall encourage a meaningful relationship between the children and both parents. However, when the COVID-19 pandemic arose, each parent decided that it is in the children’s best interests to not have any parenting time with the other parent. The mother is a teaching nurse who interacts with hospital staff but does not work directly with patients, and the father is working remotely from home.

Each parent proposed to restrict the amount of contact the other parent would have with the children. The father argued that, due to the mother’s occupation, she is more likely to expose the children to the virus than he. The father requested that the issue be mediated and the mother refused. In response, the father surreptitiously arranged to take the children to his residence when the mother was at work and subsequently refused to return them to her care. As a result, the mother brought an urgent motion seeking the return of the children.

Legal Analysis

The father argued that the May 2017 court order gave him the authority to keep the children as all P.A. Days were to be spent with the father if they fell on his weekend. Needless to say, the Court found this line of argument to be unconvincing and no more than a flimsy justification for his self-help measures. Moreover, the father involved the children in the litigation and even asked for their input in drafting a responding Affidavit.

However, given the mother’s refusal to engage in mediation, the Court found that both parents engaged in blameworthy conduct which led to the present situation. In considering the children’s best interests, the Court found no evidence that spending time with either parent presented an unacceptable risk of exposure to COVID-19. As such, the father was ordered to return the children to the mother’s care and the parties were ordered to participate in remote mediation to address the issue of the children’s residence during the COVID-19 pandemic. Given the decision in this case and other cases, it is clear that parties do not have a right to resort to self-help measures and withhold their children in violation of a court order.

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